I freely admit that one reason I procrastinated when it came to digging into Oracle v. Google (now Google v. Oracle) is the fact that this nine-year litigation, now headed to the Supreme Court, deals with software. Unlike most creative arts in which I have some background and knowledge, software might as well be magic spells that make our devices run (or not); and although this form of authorship is generally invisible or incomprehensible to most of us users, the code-writers say it entails creative expression, and so does the copyright law since 1980.
This clash-of-titans lawsuit, which currently stands with two rulings (in 2014 and 2017) in Oracle’s favor at the Federal Circuit Court of Appeals, will now ask the Supreme Court to settle two main legal questions: 1) whether the specific code (part of Oracle’s Java API) used by Google without a license in the development of Android is copyrightable in the first place; and 2) if that code is protected by copyright, whether Google’s use is protected by the fair use doctrine. I will actually address the legal narrative and issues in subsequent posts because on top of the triable matters and doctrinal debates, is a business and PR story that should probably be addressed first.
From Google’s perspective—and that of its defenders, who include many prominent copyright critics—the future of software innovation itself hinges on Google ultimately prevailing in this case. These parties allege that developers everywhere depend on using programs like Java API (originally developed by Sun Microsystems) without license; and if they cannot do so, software evolution as we know it will be in jeopardy. But without even getting into what an API is, and whether it can be copyrighted, let us keep in mind that this is Google we’re talking about—a market-killing, competitor-squashing, policy-manipulating, rights-infringing monopsonist that lacks any street cred to be speaking on behalf of the start-up entrepreneurs out there.
Copyright history is replete with this recurring theme: one business or industry would prefer to circumvent or deny copyright protection to a particular class of work and declares that, if their argument does not prevail accordingly, the death of [insert industry here] will ensue, and the public will suffer for the loss. In this sense, note Google’s very broad statement in its petition asking the Supreme Court to grant certiorari …
“Given the ubiquity of smartphones today, it is easy to forget the challenges that developers initially faced in building the operating systems that allow modern smartphones to perform their myriad functions. Among other things, developers had to account for smaller processors, limited memory and battery life, and the need to support mobile communications and interactive applications.”
Notice how the narrative thrust here positions Google as just another developer doing good works for society, almost as though the company had no interest whatsoever in becoming one of two—count them, two—smartphone platforms now being used in several major markets. But Google is, of course, not just another developer. According to Oracle’s brief in opposition to granting cert …
“Google faced an existential threat. People with mobile devices were not using Google’s search engine, causing Google to lose significant advertising revenue. It needed to quickly develop a platform tailored to mobile devices that would promote Google search.”
Perhaps Google would dispute this fact pattern, but it sounds substantially more realistic—and is wholly consistent with the company’s market behavior to date—than the tech giant’s alleged, post hoc concern for “developers everywhere.” In order to move as quickly as possible into the mobile market, and encourage developers to create apps for what would become Android, Google describes …
“In 2005, Google and Sun began discussing a partnership that would have allowed Google to adapt the entire Java SE platform for smartphones. Google and Sun conducted negotiations but were unable to reach an agreement. In the absence of such an agreement, Google used the freely available Java language (and its declarations) to develop its own libraries of methods that enabled developers to build smartphone applications for use on Android devices.” (Emphasis added)
Note that I highlighted a couple of terms in order to draw your attention to what reads like a contradiction. If indeed a software is “freely available,” why was a party like Google “negotiating” with Oracle for its use in the first place? It seems almost as though some piece of that story is missing, which, not surprisingly, Oracle fills in with its brief, stating, “Google rejected the condition Oracle demanded of all commercial licensees: make Android ‘compatible with the Java’ platform and ‘interoperable with other Java programs.’” (Emphasis added)
Again, I will leave the matter of copyrightability of the specific code Google appropriated to a future post; but even without understanding what Java or an API is, the whole existential-threat-to-software-development narrative starts to look a little squishy. Instead, this story begins to read like a typical scenario in which a commercial user (one of the biggest commercial users in the world) did not like the licensing terms to which several other commercial users had subscribed and, so, opted to go permissionless and sort it out later. With regard to its licensing regime, Oracle states that app programmers (e.g. those folks who make games and guitar tuners etc.) can obtain a free Java platform license for development. But …
“Oracle recoups its investment in the Java platform mainly by licensing it to (1) hardware manufacturers who copy the platform onto their devices…and (2) competing platform developers who want to use Oracle’s programs to commercialize their own platforms. Any platform developer that does not want to take a license is free to develop its own platform with identical functions without copying the Java platform. Apple and Microsoft did it.”
Assuming these statements are undisputed facts—and we need not understand the technology here—what exactly was Google’s problem with agreeing to the “interoperability” term of the license agreement, which other platform developers like Blackberry, Nokia, et al had signed? Could it possibly have been that the “interoperability” condition was a barrier to Google’s ambition to have something proprietary and, thereby, own as much of the mobile market as they could acquire? Sounds pretty Googley to me.
So, for all the chatter surrounding this litigation about the importance of “innovation, competition, and future software development,” it must at least be plausibly entertained that Google sought to leverage Oracle’s IP in order to expedite time-to-market while also insulate itself from any liabilities that might obstruct its eventual market dominance. That would certainly be consistent with the kind of conduct many rights holders in other media have witnessed (see YouTube), and so would Google’s couching its own interests in broad statements like this one:
“If allowed to stand, the Federal Circuit’s approach will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms—a result that will undermine both competition and innovation.”
Given the different tiers of licensing available for the Java platform, including the free license for app developers, that doomsday prediction does not ring entirely true and, therefore, belies the broad narrative that the future of all software development is under siege by Oracle’s claim. This is, of course, a familiar pattern among Silicon Valley corporations—especially Google—whereby they emphasize the general value of a system (e.g. a smartphone, a search engine, a social platform) while understating their own interests in the market itself. And they often achieve this sleight-of-hand by misdirecting public attention to hypothetical “competitors” in the abstract, while in reality, these tech giants have a habit of killing potential rivals before they get out of the lab.
As stated, I will do my best to dig into some of the specific copyright matters in Google v. Oracle in future posts; but as these stories tend to seep into public dialogue in layman’s terms and PR messaging, this seemed like the right place to start. The general premise that Google’s needs are inherently society’s needs has worn very thin. And it’s about time.
© 2019 – 2020, David Newhoff. All rights reserved.